10.7. Environmental Protest and Criminal Law

People seeking to protect the environment sometimes use non-violent direct action as a form of protest. Common forms of direct action include demonstrations, sit-ins and blockades.

Non-violent direct action may involve activities which can get people arrested, either unintentionally or deliberately. It is important if you are planning an action which could involve arrests being made that participants are aware of their legal rights during the arrest process.

Getting arrested is a serious matter. If you are arrested and charged, you will probably need to spend time and money to resolve the matter, even if pleading guilty. Even if no conviction is recorded against you, it can affect your life, including your future employment and travel options.

Before deciding whether you want to undertake any potentially arrestable action, it is worth considering the following questions:

• What laws might I be breaching?
• Could I get arrested?
• What would happen if I had a criminal record?

The information below will help you consider these matters, and decide whether you are prepared to risk arrest. It is worthwhile noting that you can often still take part in an action without undertaking arrestable action.

10.7.1. Common Criminal Charges for Environmental Protestors

Criminal offences are categorised as either ‘summary’ or ‘indictable’. Summary charges are less serious and carry smaller maximum penalties. Convictions for these offences also usually have less impact on you later on.

Common summary charges laid against environmental protestors include:

• failure to comply with ‘move on’ or identification requests;
• unlawful assembly;
• obstruction;
• trespass;
• offensive conduct;
• damage to property;
• violent disorder;
• intimidation; and
• offences under the Forestry Regulations.

Possible indictable charges include:

• concealing your identity with intent to commit a crime;
• riot and affray; and
• property damage.

Commonwealth law may differ. The information here is based on the law in New South Wales. If your protest is to take place under Commonwealth law, you should contact the Environmental Defender’s Office or another community legal centre for information on potential charges and the effects of conviction.

10.7.2. What is an arrest?

An arrest is carried out by a police officer when any two or more of the following events occur together:

• the officer tells you that you are being arrested;
• the officer physically touches or seizes you;
• you submit to the officer's authority.

The officer making the arrest must tell you why you are being arrested (not necessarily the exact charge). If you struggle or attempt to resist arrest, the police can use reasonable force to carry out the arrest.

Resisting arrest can include going limp and refusing to cooperate. What is ‘reasonable force’ depends on the circumstances of the arrest and can only be decided on a case by case basis. If a police officer is arresting you, it is best to cooperate, even if you think the arrest is unlawful.

10.7.3. When can I be arrested?

In many cases, arrests are made under the power of a warrant, an official order signed by a magistrate. However, you can be arrested without a warrant if:

• you are found by the police officer in the act of committing or immediately after having committed an offence;
• the police officer suspects that you have committed an offence; or
• you are found by the police loitering during the night and they suspect that you are about to commit a serious offence.

10.7.4. What happens once I am arrested?

You should ask to speak to a lawyer immediately upon your arrival at the police station. You can also ask to contact another person to let them know where you are. If you are to spend any length of time in a cell at the police station, any property you have will be taken away and returned when you are released.

The police can only hold you for up to four hours without charging you unless permission is granted by a magistrate to hold you for a longer period. The police can decide to release you without charges after being arrested. This sometimes happens when there are large numbers of arrests during a protest.

Once you are in lawful custody, the police may search you externally (frisk searched) without your consent. The police can take photographs, fingerprints and palmprints for the purposes of identification without your consent. The police can also perform non-intimate procedures to take skin and hair samples for the purposes of obtaining evidence, either with your permission or at the order of the senior police officer.

After being arrested you will be taken to a police station and charged. If you are to spend any length of time in a cell at the police station, any property you have will be taken away and returned when you are released. You are entitled to be released or taken before a court as soon as possible.

10.7.5. Should I answer police questions?

You have the right to remain silent. It is in your best interests to remain silent until you have had the chance to speak to a lawyer. Nothing that you say to a police officer is ‘off the record’, however casual the conversation may seem, and anything said may be used against you in evidence in court.

In certain circumstances, you are required to provide the police with your name and address including indictable offences and traffic offences. While most offences with which protestors will be charged will are summary offences, it is generally a good idea to provide these particulars to the police when requested.

It is an offence to supply the police with a false name and address and providing correct details will help you to get bail and help friends and relatives find out where you are. It can also help to have some photo identification such as a drivers licence on you to speed the process of identification.

10.7.6. Will I get bail?

After you are charged, the police will decide whether or not to release you on bail. Most protestors are released on police bail or are given a court attendance notice. If the police decide not to grant you bail, they must bring you before a court so a magistrate can decide whether or not to grant you bail.

You will be required to sign a bail undertaking which includes a guarantee that you will appear at your court date. The guarantee may be accompanied by a surety, which is a sum of money which will be forfeited if you fail to appear.

Other conditions may be attached to your bail such as reporting to the police or requiring that you do not go to certain places. A common bail condition for protestors is to remain away from the site of the protest. If you do not accept the bail conditions, the police can keep you in custody.

A court attendance notice can be issued by the police instead of bail. It contains the details of the alleged offence and the time and place your must attend court. If you do not comply with the notice, a warrant can issue for your arrest or the charge can be heard in your absence.

10.7.10. How should I prepare for court?

You should record all the events of the day as soon as possible after your arrest. If there are any witnesses to the alleged offences or the arrest, ask them to record, date and sign a statement as soon as possible.

Videos or photographs are often taken at direct actions and you should collect any that show you being arrested. This will assist you and your lawyers in the preparation of your case. It will also assist you if you need to make a complaint about police misconduct.

You should try to see a lawyer to get some initial advice before your first appearance in court. If you want to seek legal advice, it is important that you do so before the first appearance, as the Magistrate will only grant a request for an adjournment if you have a good reason.

If you cannot afford your own lawyer, you can get free initial advice from your local community legal centre or Legal Aid. There will also be a duty lawyer in the court on the day. You should have received a copy of the charge sheet and facts sheet from the police when you were charged. If not, contact the arresting officer to ask for a copy.

You should take a copy of the charge sheet, the police facts sheet and any notes on what happened that you or any witnesses made at the time or soon after the event.

Whether or not you decide to get legal advice, you should research the law yourself, including potential defences to the charges so that you fully understand what charges you face.

After you have received legal advice, you can decide whether you will plead guilty to the charges or go to trial. If you intend on pleading guilty, make sure that you agree with the details in the police facts sheet, as it will be handed up to the Magistrate.

You can negotiate an agreed set of facts with the police prior to your appearance in court and the facts sheet can be amended by rewriting or blacking out parts of it. If you have a criminal history (including charges where you were convicted but no conviction was recorded) obtain a copy from the police to check its accuracy.

10.7.8. What happens on my first appearance in court?

You must appear in court on the set date. If you fail to appear without reasonable excuse, you will be charged with failure to appear and will likely receive a fine. It will also make it more difficult to get bail if you are charged with an offence in the future.

The Magistrate will ask you what you intend to do with the charges and you should inform him or her that you will be pleading guilty or not guilty. If you wish for the charges to be adjourned, you should make your request at this time giving your reasons.

Be polite to the Magistrate. Stand up when you are speaking or the Magistrate is speaking directly to you. The proper form of address for a magistrate is ‘Your Worship’.

If you are pleading not guilty, the matter will be adjourned for a reply date in about a month’s time. You will receive the brief of evidence from the police prosecutor during this month. At the reply date, you can chose to enter a plea of guilty or to have the matter set down for hearing.

10.7.9. What happens if I am pleading guilty?

If you are going to plead guilty, you can have the matter dealt with on the first appearance in court. The charges will be read and you will be asked how you plead. The police prosecutor may give a verbal summary of the facts or hand up the facts sheet to the magistrate. If you have a criminal history, this will be tendered and will be taken into account in deciding your sentence.

You will be given an opportunity to have your say at this point. Many protestors choose to explain the nature of the protest action and that it was a matter of conscience that they were involved. If you don’t want a conviction recorded, you should address the magistrate on this point.

You should be aware that the magistrate is required to take into account a plea of guilty when sentencing you which will usually result in a lighter sentence.

10.7.10. What happens if I plead not guilty?

Before the first reply date, you should be provided with copies of all the evidence that the police prosecution have. They will prepare witness statements, including statements from the arresting and corroborating officers. The police may also have photographic, video or tape recordings, such as recordings of conversations you had with the police. If you do not have this evidence at the first reply date, the magistrate may grant a further adjournment to allow more time for preparation of the evidence.

It is up to the prosecution to prove the case against you beyond reasonable doubt. The exception is if you are relying on a defence. Then the onus is on you to prove the defence on the balance of probabilities. This is a lower standard of proof than beyond reasonable doubt.

An accused person does not have to give evidence in a criminal hearing. You can decide to give evidence yourself and/or call other witnesses to give evidence on your behalf. It may be necessary to give evidence if you are relying on a defence. You do not have to provide your evidence to the prosecution before the hearing.

At the hearing, the police prosecutor will call their evidence first. In criminal matters, all evidence is given verbally. The police prosecutor will ask questions of the witness to reveal evidence (evidence in chief). These questions must not be ‘leading’, in other words, they must be asked in as neutral a way as possible.

For example, the question, ‘Did you see the accused cross the fenceline onto Commonwealth property?’ would be leading. A more appropriate way to ask this question would be, ‘Did you see the accused? Where was she?’.

You will then have the opportunity to cross-examine the witness. You are able to ask leading questions in cross-examination but tactically, you must be careful that you do not give the witness the opportunity to say something detrimental to your case that they were not able to say in evidence in chief.

There are a few important points to note:

• If you are going to argue that the witness has given wrong or false evidence, either by calling your own evidence or making submissions to the magistrate, you must give the witness the opportunity to answer your accusation.
• You can attack both the evidence and the credibility of the witness. However, you cannot call evidence that relates only to the credibility of the witness. For example, if you are saying that they have a bad memory, you cannot call witnesses to show examples of previous instances where the witness had a bad memory.
• You can point out prior inconsistent statements. For example, if in her statement to the police, the witness said that she saw the accused walking around the fence but at the hearing said the accused had scaled the fence, you can ask questions about the prior inconsistency.

Following cross-examination, the prosecutor will then have the opportunity to ask further questions of the witness but only to clear up any matters that have come up in cross-examination. This is call re-examination.

After the prosecution has finished presenting their case, you have the choice of whether or not to present evidence. If you call witnesses, the same procedure and rules apply as outlined for the police evidence.

After all the evidence is finished, you and the prosecutor have the chance to make submissions to the Magistrate. You should say why you should not be convicted. This may be because the prosecution has not proved the offence beyond reasonable doubt or because you have a defence.

You should note that there are many other rules of evidence. A good summary of evidence for self-represented people can be found in the book by Gaby Carney and Tim Anderson, Defend Yourself: Facing a Charge in Court produced by Redfern Legal Centre Publishing.

10.7.11. What are the likely penalties?

If you plead guilty or are found guilty after the hearing, you will be sentenced. There are several types of penalties, including:

• dismissal and conditional discharge – you are convicted but not punished;
• good behaviour bond – may be subject to conditions (for example, keeping away from the protest site);
• fines – the amount is at the discretion of the Magistrate up to the maximum for your charge;
• community service orders – unpaid community work of up to 500 hours; or
• various custodial sentences – suspended sentence, periodic detention or imprisonment.

You will also have a conviction recorded on your criminal record unless you are discharged without recording a conviction.

Magistrates have the discretion to discharge a person without recording a conviction, even when an offence has been proved. You have the best chance at getting discharged with no conviction if you are a first time offender pleading guilty to a trivial charge.

10.7.12. Criminal records

A criminal record lasts forever, unless the Police Commissioner agrees to destroy the record.

The Police Service Criminal Records Unit keeps information on all charges, court appearances and convictions. The records are not destroyed, even when a conviction is 'spent' or has lapsed.

In general, the types of offences that a protester may be charged with will lapse after a ten year crime-free period (three years for Children’s Court convictions).

Once a conviction is spent, the person concerned is usually not obliged to disclose it (for example, when applying for most jobs, insurance, credit or when completing an application for a statutory licence). You may be obliged to disclose a spent conviction (or a charge that was dropped or that you were found not guilty of) if you are asked if you have ever been charged with an offence.

Even when spent, convictions are generally not deleted from a person’s record. Except in the case of some juvenile records in the Children's Court, these records are not automatically destroyed when the convictions they relate to are spent.

You can apply to the Police Commissioner to destroy the information collected when a person is charged or convicted. However, the Police Commissioner will usually only destroy the information where:

• charges have been withdrawn or dismissed;
• a person is acquitted or has their conviction quashed on appeal;
• a discharge without conviction is more than fifteen years old and there have been no other convictions; or
• for some very old and minor convictions.

Generally, it is unlikely that a criminal conviction for a minor offence will automatically be a bar to employment. It will usually be assessed by the employer and considered according to the individual circumstances of the case.

An employer may legally ask an applicant whether they have any previous charges or convictions. If an employer asks you if you have a criminal record, it is advisable to disclose it – if you don’t, this may justify your employer terminating your employment at some time in the future.

However, the law allows you to withhold information about any spent convictions (except if applying for certain jobs, such as judges, magistrates, police officers, prison officers, teachers, teachers aides or providers of child care services).

Some professions which require registration may refuse to register persons with criminal records. These professions include solicitors and barristers, medical practitioners and accountants. You should check with the relevant professional body for their requirements.

In New South Wales, the Police Service is not allowed to perform criminal record checks for private employers, except for certain categories of jobs, such as casino employees, health care, child care and disability service providers in licensed or funded services, and some other specialised forms of employment. Penalties apply for the unauthorised release of information on spent convictions.

Having a criminal record may impact on your ability to hold a public office. If you think you may wish to go into politics in the future, you should check the requirements for the particular government (local, state or federal) with a lawyer.

Some countries require you to disclose any past arrests or convictions on visa applications. Laws vary from country to country and are changing rapidly in the current international climate. You should call the relevant consulate or embassy to find out the approach taken to charges and convictions by the country you wish to visit.